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Anarch Half-Hoare

Does common law apply to nobility?

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7 hours ago, SeanF said:

The set up of Westeros differs from medieval England, where, from quite an early stage, there was a fairly centralised legal system (at least by the standard of its time and place) and judges were appointed by the King.  Most manorial lords actually didn't have the power to impose death sentences, (although some manorial courts could execute thieves) and capital cases were generally tried by County or Borough courts by professional judges, before juries.   That doesn't mean that the system was not highly partial towards the rich and powerful, and nor did it prevent the rich and powerful from taking the law into their own hands, but conceptually, it was quite different from the system in Westeros, where every lord is judge and jury in his own land.

Since i never compared it to the system of medieval engeland i really do not understand your responce, it seems pointless

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17 hours ago, SeanF said:

I expect Tarly has been given a very free hand to act as he sees fit.  He's basically the military dictator of the area in question.

That is what I was referring to above, too. Tarly judgments in Maidenpool aren't likely representative of 'normal dispensation of justice in peace time'. We see this also in his treatment of Lord William Mooton who sits at the table with him but either decides to or was forced by Tarly to keep out of the whole affair.

Considering that Tarly also nominally holds on legal power in Maidenpool or the Riverlands it is pretty clear that this is a special situation. Under normal circumstances (based on the example in THK) the lord of the place where a crime is committed would be one of the judges (Lord Ashford), joined by his liege lord (Lord Leo Tyrell in that case), in addition to other members of the royal family (including the Hand of the King).

Considering that Tarly doesn't really fit into any of those categories it is simply unlikely the man following 'normal peace-time procedures' here. The man was restoring the King's Peace in the region, not keeping it. He dealt out harsh judgments to show the people there that the lawless times were over, and criminal behavior would no longer be tolerated.

17 hours ago, SeanF said:

Another thing that interests me is that punishing some common men could cause difficulties for a lord.  Say, one of the smallfolk murders another in a tavern brawl, the penalty is murder or being sent to the Wall.  The local lord should have no problem imposing such a penalty.  But what if it turns out that the man in question is the valet, or bodyguard of a neighbouring lord?  The latter may find the man useful, and might take his execution as a slight on his honour.  Does the lord trying the case want to make a potential enemy of the defendant's employer?  Does imposing a lesser punishment show to the latter that he's easily intimidated?  In such a case, there are political ramifications that need to be considered.

That kind of conflict is pretty much the topic of TSS, is it not? We have Bennis injuring Lady Rohanne's peasant as a sworn sword of Ser Eustace Osgrey. This kind of thing clearly can lead to an escalating spiral of violence if nobody is there to stop it. Presumably that's when a the liege lord of both those parties should intervene.

A similar (but larger) case is the violence between the Hornwoods, Boltons, and Manderlys in the wake of Lady Donella's abduction, forced marriage, and death. 

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13 hours ago, direpupy said:

Since i never compared it to the system of medieval engeland i really do not understand your responce, it seems pointless

Merely a general observation.

 

3 hours ago, Lord Varys said:

 

That kind of conflict is pretty much the topic of TSS, is it not? We have Bennis injuring Lady Rohanne's peasant as a sworn sword of Ser Eustace Osgrey. This kind of thing clearly can lead to an escalating spiral of violence if nobody is there to stop it. Presumably that's when a the liege lord of both those parties should intervene.

A similar (but larger) case is the violence between the Hornwoods, Boltons, and Manderlys in the wake of Lady Donella's abduction, forced marriage, and death. 

Yes, that's right.  I was thinking more specifically of the poacher that Lady Webber drowned.  Ser Eustace is about as low in the pecking order as any landowner can be.  Lady Webber can execute one of his people with impunity.  And, given how precarious her own position is, she has to punish people who repeatedly poach on her land, otherwise, neighbouring lords will think she's weak.  But if the poacher was in service to a powerful lord, then she'd have to think long and hard about how to respond.

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2 hours ago, SeanF said:

Yes, that's right.  I was thinking more specifically of the poacher that Lady Webber drowned.  Ser Eustace is about as low in the pecking order as any landowner can be.  Lady Webber can execute one of his people with impunity.  And, given how precarious her own position is, she has to punish people who repeatedly poach on her land, otherwise, neighbouring lords will think she's weak.  But if the poacher was in service to a powerful lord, then she'd have to think long and hard about how to respond.

Sure, that could have caused trouble in the longer run. And she herself admits that she only acts as harshly as she does to ensure that her neighbors don't attack her.

How this kind of justice system actually can work without exploding every second is an intriguing question. I mean, if some such differences grew into open conflict between two powerful neighboring lords then their liege might not exactly be able to create or enforce a peace.

And things like that - people connected to important people elsewhere committing or becoming victims of crimes - should actually happen rather often. But one assumes that the peasants really don't travel all that often (at least not beyond the domains of their lord, or the neighboring lord's) and that those commoners who actually own stuff (merchants, rich craftsmen, etc.) usually get a much better treatment when they are involved in certain affairs than lesser-class nobles - especially when they have connections to certain nobles.

A merchant who routinely dines with Lord Hightower or Redwyne should get away with a lot of stuff in the Reach, and perhaps even in other places of the Seven Kingdoms. Not necessarily with everything - especially not when he caught red-handed - but with some.

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22 minutes ago, Lord Varys said:

Sure, that could have caused trouble in the longer run. And she herself admits that she only acts as harshly as she does to ensure that her neighbors don't attack her.

How this kind of justice system actually can work without exploding every second is an intriguing question. I mean, if some such differences grew into open conflict between two powerful neighboring lords then their liege might not exactly be able to create or enforce a peace.

And things like that - people connected to important people elsewhere committing or becoming victims of crimes - should actually happen rather often. But one assumes that the peasants really don't travel all that often (at least not beyond the domains of their lord, or the neighboring lord's) and that those commoners who actually own stuff (merchants, rich craftsmen, etc.) usually get a much better treatment when they are involved in certain affairs than lesser-class nobles - especially when they have connections to certain nobles.

A merchant who routinely dines with Lord Hightower or Redwyne should get away with a lot of stuff in the Reach, and perhaps even in other places of the Seven Kingdoms. Not necessarily with everything - especially not when he caught red-handed - but with some.

One can think of medieval societies where such conflicts were commonplace. eg feuds in Renaissance Italy that lasted generations, and encompassed not just noble families, but anybody in their service. But medieval noblemen generally were very touchy about their honour, and frequently treated an insult or injury to someone in their service (or even an entirely legitimate punishment) as a slight to their honour.

Edited by SeanF

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Hey, thank you all for feedback on this question. I've been reading the replies throughout the week, and wouldn't want anyone to think I merely posted and then vanished again without thanking you all for your insights!

 

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Posted (edited)

Well, it's feudal law like people pointed out. Tarly's judgments aren't necessarily arbitrary. They actually seem quite fair and thorough for the time and place, except he got carried with the whore (though the punishment was still realistic).

Here are some characteristic features:

Retaliation (lex talionis, eye for an eye) — this is in fact a time-appropriate rule, which serves as a tariff, similar to a schedule of fines and jail terms. It makes sure the offender won't get off lightly but also that his life won't be taken and he won't be thrown in the dungeon forever. According to some theories this was pretty progressive when Hammurabi introduced it in the early post-Sumerian era in Babylon. The sailor's penalty fit here, and so did the whore's, though the latter case was more dramatic and involved a sort of poetic justice.

Mutilation penalties — finger for his, hand for that, or foot. Barbaric, of course, but not arbitrary. There was a clear tariff, more so than with jail terms (and perhaps fines). Some difficulty arises from the fact that there were two types of multilation: retalation (as above), i.e. precise mirroring of the harm done by the offender (e.g. driving a nail through someone's hand to mirror a dagger), and a somewhat fixed tariff (a finger for theft, a hand for striking a royal, etc.).

Customary law — judges in feudal criminal cases didn't really need to know a lot of written material, just basic principles on which they would make decisions about the evidence or about the penalty. The rules weren't complicated or extensive enough to prevent them from being known and somewhat well understood by pretty much any noble, even knight, or a guard sergeant, or village elder, or ship captain, although their wisdom and dexterity and in the application of these rules would, of course, differ according to the individual's intelligence, wisdom, sense of justice, mercy and so on. This is actually very similar to modern criminal law (still based on a set of general rules), once you realize is that the only difference is the statutory limits limits imposed on judges, the level of detail etc., so they just have less leeway but the process is similar. In modern times, you could have a hundred different forms of malappropriation with different sentencing limits for each, as well as a bunch of statutory factors for the judge to take into account; previously — or in Westeros — it was more like: 'hey, theft is theft, and we'll judge each on a case-by-case basis'. Such broad categorizations still exist in some countries.

In the middle ages in Europe you'd normally get some sort of summary justice like Tarly's (or even more primitive than that) — in modern terms, Tarly is a JP on steroids, not a professional judge — unless you appealed to a higher judge and eventually those appeals went to the law faculties of European universities. It depended on a lot of circumstances who had the right to appeal and in what cases and whether the right would be respected or what the consequences of appealing and losing would be (it was regarded as slandering the judge and sometimes, let's say, a knight or merchant judged by someone like a castellan would have to wager something expensive before the appeal would go forward). And then there was obviously the king, not like every last peasant everywhere would be able to go there.

Not fully defined crimes — you know it's wrong to kill, wound, steal, lie, betray trust, betray your liege lord, etc., so it's not really a surprise that cheating someone out of his money in a game could ultimately get you in serious trouble. Modernly in real life crimes are normally more defined due to the humanitarian notion that people have a right to know what exactly they're going to be punished for (nullum crimen sine lege), but some elements can still be pretty vague and general, left by the lawmaker for judges to figure out on a case-by-case basis until some rules crystallize in practice. This is bad lawmaking in the 21st century but was pretty standard before, say, the 19th.

... Or punishments — still, all we've got is dungeon (jail), fine, and mutilation. There is a clear notion, though perhaps imprecise in detail, of how much is due for what.

It's possible Tarly took initative in aggravating the penalty for stealing in a sept in a show of harsh piety, but he was probably within the limits of his position, where a lesser judge may or may not have had the same leeway. He still gave a rationale that fit well within the paradigm accepted by pretty much everybody in the courtroom.

Infinite or indefinite jail term — 'throw her in the dungeon' — looks like a harsh mark of the times, with commoners' lives being cheap and not worth a lord's precise reckoning or much attention from him anyways. Perhaps it was the oubliette, where you were left to die and die rather quickly, but I wouldn't presume that based on 'dungeon' alone. This could in fact also mean a life term in a 'normal' dungeon, where at least you get 'fed' and they might even take the bucket out every week (though perhaps no clean straw for you and no rat catchers), or until the lord needed or wanted to clear the dungeons, e.g. in a show of mercy on a holiday. Or perhaps there was a rule in place about maximum terms, which might even not be that long (the maximum term in one of mediaeval European kingdoms was little more than a year).

Lash for stag is not arbitrary — modernly you'll do jail time if you can't pay a fine, and in past centuries jail was about just as much avoided as it is preferred nowadays (though even modernly there is also still a trend to move toward non-imprisonment penalties to the extent practicable/acceptable).

The baker's penalty may be class justice — putting sawdust in the bread could be regarded as stealing, but the baker won't be losing any body parts, provided that he can meet the expectations of his station (artisan/petty merchant, not some hired hand) and pay the heft penalty. If not, he'd be lashed like a common criminal, and in fact fifty lashes would be much more damaging to his overall health than the loss of one finger, although it wouldn't make his body incomplete, just severely weakened. Plus, the lashes are primarily meant to provide incentive to in fact come up with the silver he allegedly didn't have. I think this reflects the conservative authorities of a class society being more liberal with the lives and limbs and bodies of the lower than the middle classes, let alone lords of course, although no one (and certainly not hedge knights, who were technically petty nobility) was fully immune to corporal penalties and torture. Likewise, I suspect low-class commoners could perhaps evade corporal penalties if they somehow had the money to pay or something else valuable, it's just that normally they wouldn't, so they paid in fingers, hands, feet etc.

Punishing a non-indicted/accused party (in reality: informal trial) — the dice-cheating man-at-arms wasn't even accused by the sailor and arrived only as an accuser, but Tarly was still free to seize him. Technically, the sailor upheld the accusation, so there was an accuser, it's just that the accusation was informal, just like the whole court session. This does not even necessarily mean that Tarly acted on the inquisitorial principle, it was still adversarial trial, just without the formalities. Tarly was not in the business of 'take this form, fill it in, pay the docket fee and come back on a different day' or issuing decrees about joinders of cases, he just had an accuser and acted on it, as he was within his rights to do.

Not much concern for the individual, little though to rehab, mostly retaliation/restoration of balance — typical traits of criminal justice in mediaeval Europe and some part of 21st century United States of America. :P

Less focus on establishing mens rea (intentional crimes vs oops crimes) — but don't let people kid you and tell you modern European or American judges scrupulously pay a truckload of attention to it. Only law students — and possibly some of the professors who write the books — believe that nonsense. It's mostly legal academics deluding themselves and sinking into wishful thinking (I'd know, I was one). The whore 'gave pox' to the soldiers, and that was the end of it, nobody asked if she was aware she had it or not. It's never said either way. Even Hammurabi's Code prescribed lighter punishments for non-intentional offenders. Still, Tarly's decision doesn't strike me as being totally of base, though much in line with the anti-commoner and anti-whore prejudice of the time and place.

All in all, Tarly was quite fair, for a lord, although the message was harsh.

Also, a lord or king's justice is just plain different. There is this special difference when a king, lord or some other ruler is judging a case vs an elder vs a pure salaried professional judge. A lord is your ruler, social superior etc., so he judges differently. Not only does he resemble a JP/magistrate more than a professional judge, the whole thing resembles disciplinary proceedings, captain's mast, office hours or something else like that (even punishments meted out by parents and teachers) more than formal professional trial. Aegon the Conqueror was more professional, but still professional in the lord/king sense, more than judge sense as we know them. Professional judges probably exist only in Essos.

 

On 23.01.2018 at 5:23 AM, Anarch Half-Hoare said:

Question is in the title.

Say for example:

1. Lord Arryn stabs a commoner in King's Landing after a dispute (without it being self-defense)
2. Lord Arryn stabs Lord Hornwood in King's Landing
3. Lord Arryn stabs one of his own bannerlords in King's Landing
4. Lord Arryn stabs one of his own bannerlords in King's Landing after the latter publicly declares sedition against his liege

What do you envision the consequences would be for those outlined scenarios? Would the law of King's Landing come down on the man? Did he even break any laws to begin with? In know that in the feudal ages it was described that nobility was not subject to any laws, and that for example violence and feuds were a part of their noble rights.

#1. If the commoner is particularly brave or has a strong sense of justice and determination, the case may reach the Hand during the usual court sessions, e.g. the commoner would step up from the audience and state his grievance. Very risky, particularly with hot-blooded nobles viewing the 'slander' of a high lord by a commoner as one of the vilest crimes possible, with the 'slandered' possibly not deserving a chance to prove it. But still very risky for Lord Arryn because just about any knight in attendance could take the commoner's cause and probably make a trial happen, forcing Lord Arryn to appoint a champion. And that would be very risky for the knight, because the champion would probably have 30 years of training (at 34–35 years of age :P) and fight in a suit of armour worth more than the total assets of House Baelish according to the official balance sheet. ;) And possibly Valyrian sword. On the other hand, if Lord Arryn had a lot of enemies, the case could be taken up by anyone up to fellow lord paramount or prince, Ashord-style (ser Lyonel Baratheon was the heir apparent of the Stormlands, even if we disregard Prince Baelor, as heir apparent of the whole thing, as a special, unique case). Let's say a landed knight makes a fuss, perhaps he's cousins with a petty lord, who is cousins with a high lord and on that tier everybody is related, often in more than one way.

#2. Probably trial by combat, possibly trial by the Seven, unless Lord Arryn is Hand of the King enjoying total loyalty of the army/Gold Cloaks and obedience of all the lords and knights present. But by law even ser Bastardsecondcousin Hornwood stabbed by the King of the Seven Kingdoms would still have the right to trial by combat. Perhaps with punishment (possibly for his entire family) for high treason (slander of the king) if losing. But still. The Seven Kingdoms are not an entirely lawless place. ;)

More likely, however, Lord Hornwood's liege, the lord paramount (LP of the North in tihs case), would intervene, quickly putting the case between equals, leading to either a quick business-like settlement to avoid scandal or an honour squabble between two LPs, depending on the tempers of the people involved. Lord Hornwood's liege is farther away than the other LPs, though (but there are always ravens).

#3. Either regarded as (miscarriage of) summary justice or some other abuse of Lord Arryn's liege authority, leading to cooler tempers, more formalities and more solemn atmosphere, as well as more leeway for Lord Arryn to preserve his dignity even upon being regarded as the party who was in the wrong, or a hot dispute between two knights. Because the bannerlord would be a knight, and knights are allowed to nominate champions but not to avoid trials by combat altogether. Either way, the bannerlord being a knight (or even a lord who had never been knighted) would pave the way to trial by combat or possibly even trial by the Seven.

Note that the bannerlord's relations could include e.g. Lord Arryn's younger brother or the majority of his council, or half the principal vassals of the Vale, or (not unlikely) a lord paramount on the outside or a royal prince, meaning he could bring in the cavalry, a sort of makeshift alliance to put the case on a more equal footing. This is what lordly arranged marriages, fostering and squiring ties were for. A man had a network. Few cases were truly between individuals.

#4. This would be close to #3 but with better arguments speaking for Lord Arryn and against the bannerlord. Outcomes could range from 'internal matter & exercise of LP rights', through 'shady but internal' to even 'violation of the King's Peace', strictly depending on the tempers, loyalties and other subjective circumstances of the people involved. And that would be a great lot of people.

Especially in ##2–4 everything depends on connections and loyalties or on the sense of justice or honour of the people involved. Yes, there is law on the books. But there is also some conflicting law on the books pointing in the opposite direction. See which principle is going to come out on top when the time comes to apply and execute the law.

What I don't see happening is something like eye-for-an-eye or mutilation penalty applied against a lord paramount. Death penalty perhaps, but only in most odious cases, such as caught assassinating a sleeping bannerlord, which would invalidate much or most of the LP's honour and prestige. Normally, it would probably mean the loss of a hefty sum of money (not necessarily to the victim, but very possibly to the royal fisc, i.e. the king's coffers), a high office (e.g. seat on the small council), perhaps some territory (e.g. several border villages to placate Start for stabbing Hornwood) or such like.

As a rule, lords get more opportunity to pay compensation, as opposed to paying with their lives or limbs like commoners. Lords would also get more respectful treatment, more consideration for the individual circumstances of the case (mitigating circumstances, shoddy evidence etc.) etc. The higher the lord, the more such opportunities and the better treatment. Also the higher the lord, the less likely being seriously charged with something like treason or violation of the king's peace, especially in anything that was not a clear-cut case.

However, there is always danger, no matter how high your station, if you have enemies and there is a law that could be used against you. You could, for example, be Hand and Regent and still get decapitated fairly quickly and without much ceremony because of an invocation of royal authority by the dowager queen consort (legally a highly respected person with no authority) on behalf of the king (legally your ward whom you're entitled to spank). Obviously 10,000 Northmen at KL's gates would have influenced the law in a very different way. ;)

Historically, in mediaeval Europe, lords would typically be regarded as having a lesser version of royal immunity to lesser courts, but this would not necessarily be very well defined, so a duke could ignore city guards but a baron not necessarily, and then there would be the matter of who represents whom and who will back whom up when the snow hits the fan. ;)

There is no reason for Westeros to follow a different pattern, and it does follow a similar pattern. But part of the pattern is that things are not clear-cut, rules overlap, and it's not easy to say which rule takes precedence in the relevant situation. Interpretation is subjective, politics matter just as much if not more than legal principle and perhaps psychology matters even know. And practicalities matter. Practicalities typically means an LP doesn't move around KL without a large retinue and being a junior commander in the Gold Cloaks you don't assault an LP, 5 lords and 20 highborn knights to arrest the LP for a public quarrel with his own bannerlord. However, loyalties and alliances matter and protection by one's liege and higher-up friends matters a lot, so you never really know what's going to happen or what's going to happen in response to that. You can only place bets. There are no safe bets in very contentious, complicated cases for which there exists no clear precedent (hard cases make for bad laws).

Pretty much the entire series is about this actually. You play or you think you play, as a high lord you enjoy relative safety, but in the end just anybody's head can end on a pike, up to Hand and even King. Nobody is perfectly safe, let alone certain of the various outcomes. Not Aerys, not Ned, not Tywin, not Kevan, not Littlefinger (as the TV series shows) and not even Varys, who could probably stil be assassinated or wounded with relative ease if a lord had a reason to do that (KL is full of crossbows).

Power equations make privilege very relative.

EDIT: But as for the title: Common law doesn't apply to the nobility in the sense you mentioned, i.e. violent altercations with other nobles and commoners, let alone in actual private wars — they wouldn't be killed for killing commoners or lose fingers for unjustly taking land or collecting more taxes than legally allowed. However, a lord caught red-handed in the middle of an assassination or burglary would by no means be a clear case, likely ending up on the Wall to spare the family the embarrassment by at least nominally clearing his name and possibly positioning him to be elected Lord Commander anyway (or at least serve as castellan, first ranger, field commander, whatever, based purely on talent, for example), if the matter could not be silenced. It would squarely depend on those who caught him and their superiors.

Exception: Aerion Brightflame was exiled to Lys pretty much for breaking a commoner's fingers (though his own were not broken!), although you could say a knight's involvement prove decisive, Aerion ended up being regarded as the false or rash accuser of a knight, condemned in a trial by the Seven, and the matter could not be silenced because his uncle and a number of knights died in the middle of the affair, so it wasn't just between Aerion and a commoner.

Had Aerion not been intercepted by Dunk, he may well have been intercepted by Lord Ashford's guards commanded by some knights, leading to a standoff, but Lord Ashford, if personally present, would probably have ordered him arrested. I'm sure Lyonel Baratheon would have had him seized by his own men, even slaying the prince's guards in the process if necessary. The Fossoways or the Humfreys, however, probably didn't have enough oomph other than challenging the prince to knightly combat on the spot, which would probably have been regarded as justified by just about anybody (other than Aerion).

Edited by newbieone

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